Joan Burton (Dublin West, Labour) | Oireachtas source

I move: "That the Bill be now read a Second Time."

Education policy can throw up many opinions and preferences, some of them contradictory, but most of us agree that children benefit from meeting and getting to know others from different backgrounds and religions. Most of us agree that diversity in our schools is an opportunity for society, not something to feel threatened by. No Member would support the idea of parents being coerced to baptise their children just to secure a school place for them. We would, I hope, find this offensive, from both a religious and a secular perspective, yet most of us, certainly from the Dublin area, have come across these cases. Most, if not all, Members agree that local children should have access to their local schools because they serve as the centre of our communities. As society becomes more diverse and as more people opt out of the predefined roles assigned and imposed by religion, our school system faces a watershed. Can it adapt and cope with the new demands that parents now make of it?

No single change in the law will meet all those parental demands. In particular, where pupil applications outnumber pupil places, the solution will not be found simply by rewriting school admission policies; the solution is to build more schools, and that is what we did during our term in office. Our national school system was originally intended to be religiously mixed way back in the 1800s. However, from the beginning, all the main churches refused to co-operate in the provision of religiously mixed education. Despite the State's intentions as the founder and funder of the system, it became overwhelmingly a denominational system of separate provision, and the State, in successive editions of the Rules for National Schools, increasingly recognised and even enshrined this denominational reality. This development reached its peak in rule 68, which dates back to 1965. In that rule, the Minister and the Department instructed our State-funded schools: "Of all the parts of a school curriculum Religious Instruction is by far the most important". Every school was instructed that a "religious spirit" was to inform and vivify all its work. My colleague, the former Minister for Education and Skills, Deputy Jan O'Sullivan, rightly revoked this rule last December. It is, of course, no function of the State to instruct schools about the place of religion in the education they provide.

The problem now is that we have a system of national schools that are privately owned but publicly funded, and access to those schools is decided by religion, but we still have a Constitution that envisages something different. This goes back to the 1800s, and there is a clear tension between different constitutional provisions that have an impact on admission policy for our schools. On the one hand, the Constitution makes it clear that the State is entitled to fund denominational schools and that those schools are entitled to provide religious instruction during the school day. On the other, the Constitution also requires that legislation on State aid for schools must not prejudice the right of any child to attend a State-funded school while opting out of religious instruction. This much has been stated in the Supreme Court: if a school accepts public funds, then any child, no matter what her or his religion, is entitled to attend that school and has the right not to attend any course of religious instruction at the school. However, we as legislators have not yet come to terms with what this means and what it imposes on the design of our education system.

The Constitution Review Group reported in 1996 that Article 44.2.4° had the potential to give rise to difficulties. Our task, therefore, as legislators is to strike an appropriate balance between the right of a school to preserve its denominational ethos and the right of a child to attend a State-funded school and to avoid religious instruction there if that is what the parents of the child wish. In other words, when a denominational school accepts State funding, it must accept that this aid is not given unconditionally. The State-funded school must be prepared in principle and in practice to accept pupils from other denominations or none and to provide separate secular and religious instruction. The Bill aims to achieve this effect in law.

I acknowledge that our Bill does not go as far as some commentators and interest groups would like, and I will spell out clearly why. Discrimination in the provision of education is generally prohibited by the Equal Status Acts, but there is an exemption for denominational schools. Section 7(3)(c) of the 2000 Act provides that a school does not discriminate where it admits one child in preference to another on religious grounds. Some campaigners have called for a straightforward repeal of this subsection to end the exemption for schools from our anti-discrimination laws. I acknowledge that the call has a certain appeal, but I believe this is seriously flawed as a solution. Suppose the Act was amended to outlaw a discriminatory admissions policy for State-funded schools and it was insisted on that every school must be open first and foremost to its neighbouring children, with students enrolled on the basis of proximity rather than religion. If there were two national schools in a particular area, one Catholic and one Presbyterian, both schools would no doubt protest against the change in the law but both would comply with it. At the end of the admissions process, simple demographics dictates in the Republic that the Catholic school will still end up with a largely Catholic student population. The problem is that the Protestant school will also, particularly if it is in my area of west Dublin or in Lucan or Swords, because the Catholic population is so numerous that, on a proximity basis, they would more than likely fill both schools. If the law was amended in this manner, it would have to be applied equally and in a non-discriminatory way to schools of all Christian denominations and all minority faiths. Ironically, even though those who want a change in the law are chiefly targeting Catholic schools, only these schools would survive the impact of such a change.

A repeal of, rather than an amendment to, section 7(3)(c) would spell a more or less immediate end to participation in our education system by the Church of Ireland and the Methodist and Presbyterian churches, as well as the Jewish and Islamic faiths. This proposal might well appeal to ex-Catholics, but it takes no account of non-Catholics, and that must make it constitutionally dubious. Since the public funding of denominational schools is contemplated by the Constitution itself, any preconditions that are imposed by the State to receive that funding could not be such as to destroy the denominational character of a school. If schools admission policy was required to be entirely neutral on religion, the smaller the faith, the greater the risk that its schools would entirely lose their denominational character, a character our Constitution rightly entitles them to have.

Even if we were constitutionally entitled to do so, we in the Labour Party do not want to see an end to minority faith participation in schools and, therefore, our Bill does not seek to destroy the ethos of denominational schools. It does seek, however, to impose conditions for State funding that reflect the requirements of the Constitution. It falls to us to propose this Bill because the Government has already made clear that it has no intention of legislating in this area and we are back to the scenario of St. Augustine, the long grass, holding off and Lord let me do it some day but not just yet.

At present, the law states that a school can absolutely refuse to admit a child on religious grounds if the school can prove that the refusal is essential to maintain the school’s ethos. That would be a very hard case to prove and it is not used in practice. Therefore, we do not propose to change this provision. The Act also states that any denominational school can give preference to children of its own denomination. There is no test of necessity and no proof required at all. This exemption applies to every school, regardless of whether it is State-funded. Such a preferential admissions policy might, for example, provide for admissions of, first, Catholics of the parish, then, second, Catholics from outside the parish, and then, third, local non-Catholics.

A "religious first" rule for enrolling students requires the production of a baptismal certificate or equivalent as a condition for admission. As a result, non-baptised children can be turned away, especially in urban areas where schools are hugely over-subscribed. I am very familiar with this in my area. The patrons of all the different religious denominations and patrons such as Educate Together and community national schools work hard, notwithstanding the contradictions in our law, to ensure that as far as possible every child is a welcomed child in the school, regardless of religion or ethnic or cultural background. We must acknowledge the aspect of the present law that sanctions a preferential admissions policy, admitting students from outside the school’s catchment area in preference to those of a different religion or none who live in the area. That is the problem with the existing law. Such policies run the risk of depriving more and more non-Catholic children of education in their neighbourhoods.

The purpose of this Bill is to amend the Equal Status Act to redress the imbalance between the right to maintain denominational schools and the right of children to receive a secular education in a State-funded school. Under our proposals, a denominational school’s preference for one religion would only be accommodated to the extent that it is demonstrably needed, by reference to actual circumstances, to meet the demand for denominational education in its catchment area, in accordance with the conscience and lawful preference of parents. Once that local need is met, the school cannot continue to prefer its own co-religionists to fill up the remaining places. I should make it clear that we intend to allow each school to define its catchment area under its statutory enrolment policy. Not every catchment area is equal in size. A Catholic school may well be in a local parish comprising a few thousand houses while a Protestant school may well serve half a county. We have examples of that in Dublin and in Meath. We have that factual situation.

Another important change is proposed in our Bill. It states that, in deciding whether an admissions policy or a refusal is proved to be essential, due regard must be had to the constitutional right of any child to attend a State-funded school without attending religious instruction, and also to the concomitant obligation that every such school should be so organised as to enable that right to be enjoyed. If the local State-funded school is the only reasonably available school and it is a denominational school, then, notwithstanding its religious ethos, the secular and religious instruction in that school must be severable to enable a child to attend that school without receiving religious instruction. Otherwise, the school should not qualify for public money.

I refer again to the report of the Constitution Review Group, an eminent body that included two former Attorneys General and a director general of that office, as well as two future superior court judges. On this issue, the group concluded bluntly that the denominational character of the school system does not accord with the Constitution. The report states:

The situation is clearly unsatisfactory. Either Article 44.2.4^oshould be changed or the school system must change to accommodate the requirements of Article 44.2.4^o.

Faced with the choice between amending either the Constitution or the school system, that group did not recommend a change to this part of Article 44.2.4^o. First, it pointed out that the provision was a limited exception to the general constitutional prohibition on the State endowment of religion. Second, it argued that if Article 44.2.4^odid not provide safeguards for minorities, the State might be in breach of international obligations. It argued that an amendment would be a retrograde step in the context of Northern Ireland and would send the wrong signal concerning pluralism in the State. We in the Labour Party accept these arguments. We are not proposing an amendment to the Constitution but, if the Constitution is not to change, then the education system must change to align itself more closely to what the Constitution requires. Therefore, denominational education providers must accept that public money is not given unconditionally. The Constitution imposes requirements. It requires that every publicly funded school must be prepared, in principle, to accept pupils from denominations other than its own and to have separate secular and religious instruction. That is not just the Labour Party’s position, it is also the position, or very close to it, of most of the parties in the Dáil having regard to the recent general election manifestos.

In the spirit of new politics, it is open to the majority in the Dáil this week to progress this Bill through Second Stage and send it on to Committee Stage where we can continue the debate, reach consensus and, finally, make an agreed improvement to the law. I do not claim that its drafting is perfect or that it covers every conceivable contingency, but Second Stage debate is about accepting the principles and policies of a Bill. If it is accepted, we can all contribute to improving the Bill on Committee Stage.

I have seen the Government's proposed amendment to the Bill. I understand the Minister's good intention in this respect but the road to inaction, particularly in this Dáil, is paved with good intentions and, in a way, an excess of talk. The Government's proposal is that this Bill will only be deemed to be read this time 12 months hence. It is to be postponed for 12 months. It would be helpful if we could set a political target for parents because this is about parents, boards of management, teachers and patrons all trying to do the best for the children of the area. I represent Dublin West where we have the highest level of diversity in the State and where an extraordinary contribution is made by patrons, teachers and parents for the betterment of children. We as a Dáil should aim to have this legislation in place for the 2017-2018 school year. It would address the issue in this context of parents having to be involved in baptism where they do not wish to do that. If they wish to do it, it is a wonderful celebration, but if they do not, there is something false and forced about it. If this Bill were accepted and we then dealt with it in committee and at pre-legislative scrutiny level, we would then be ready for that timeline. I urge the Minister, in terms of our Republic, that this is the appropriate thing to do and not to dilly-dally with this for another year.

As this is a precarious Dáil at times, is another year the equivalent of putting it off for three years or more? I understand that the Minister is well disposed and has engaged very generously in the discussion, but I suggest that he rethink the amendment he proposes, because it puts the matter out of bounds in terms of academic years for several extra years. I am not sure that is his intention, but it is the consequence of what he proposes. The Minister also proposes that we sort out so many issues when, in fact, as I think I have outlined in my speech, most of the pertinent issues are addressed in the Bill. Where they are not, the proposals that have been put forward by the different groups and the parties in their manifestos are capable of being addressed on Committee Stage so that we have the best outcome for all of our children in the diverse society that many of us happily live in now.

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